Modern Slavery Bill

Written evidence submitted by UNICEF UK (MS 06)

Summary and recommendations

1. UNICEF UK welcomes the Modern Slavery Bill as an important opportunity to protect the most vulnerable children from trafficking and exploitation. We acknowledge the increased focus on the rights of victims in Part 4 of the Bill over recent months, but believe the Bill can be further improved and strengthened to ensure children are better protected from all forms of trafficking and exploitation.

2. UNICEF UK would like to see amendments prioritised in the following areas of the Bill, and it is on these issues that this written submission will focus:

· Revisions to the human trafficking and modern slavery offences in the Bill to reflect international definitions and take into account particular considerations for children

· The inclusion of stronger measures to ensure the non-prosecution of child trafficking victims for offences committed as a result of their trafficking situation

· The establishment of independent guardians with adequate legal powers and authority to act in the best interests of the child.

International obligations and standards for the protection of children

3. Unaccompanied, separated and trafficked migrant children are some of the most vulnerable children in the UK. The trafficking and exploitation of children is a serious crime and a growing global problem – in 2012, the International Labour Organization conservatively estimated that 5.5 million children are trafficked every year (amounting to 26 per cent of total victims). [1] The picture in the UK is little different, where we have seen a significant increase in the number of children identified year on year as potential victims of trafficking. [2] At least 10 children are trafficked every week but, with many remaining undetected, the real scale of trafficking in the UK is likely to be substantially higher.

4. The international legal framework on human trafficking and forced labour, and child trafficking and exploitation, is well developed, with government obligations towards children set out in specific instruments. This includes the UN Trafficking Protocol, the UN Convention on the Rights of the Child (CRC) and its Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (OPSC), as well as in the Council of Europe Convention on Action Against Trafficking in Human Beings (the Trafficking Convention) and the EU Directive on Trafficking. Article 35 of the CRC states that:

"States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or any form."

5. Moreover, in Article 36, the CRC is explicit about the duty of governments to "protect the child against all other forms of exploitation prejudicial to any aspects of the child’s welfare".

6. The UN Committee on the Rights of the Child, following a review of government action on the sale of children, child pornography and child prostitution, recently called on the UK Government to "enact a specific legislation on child trafficking in accordance with the Optional Protocol and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children…and ensure that the crime of child trafficking is defined consistently and prosecuted throughout the State party." [3]

Definitions : Part 1 of the Bill

7. It is important that the definition of human trafficking in the Modern Slavery Bill (clause 2) reflects the international definition of trafficking in the UN Palermo Protocol, and therefore complies with the EU Trafficking Directive:

"Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation." [4]

8. The continuing omission of means in the current UK definition of trafficking (a key element of trafficking), the subsequent irrelevance of means with regard to child trafficking (allowing more flexibility in prosecution), and the continuing over-reliance on "travel" to define all acts of trafficking (recruitment, transportation, transfer, harbouring and receipt) prevent clarity about what constitutes trafficking in the UK. As such the Bill currently risks failing to address well-documented challenges in prosecuting traffickers in the UK, and creating further unnecessary barriers to cross-border co-operation.

9. UNICEF UK would like to see the Bill include a clear legal definition of a child as a person under the age of 18. Inserting this clause to apply across the Bill would result in stronger protections for children; firstly by clarifying offences and recognising the legal differences between trafficking adults and children; secondly by removing any ambiguity about the definition of "young" when defining exploitation (clause 3 (6) (a)) and on the application of "age as a relevant characteristic" in the statutory defence (clause 39 (2)), and finally by driving age-appropriate identification, protection and support measures across the Bill (including but not solely in relation to the statutory presumption of age in clause 43).

10. UNICEF UK recommends the Committee to consider amendments to the definition of exploitation in clause 3 (1) of the Bill to ensure that new legislation does not introduce an exhaustive list, but instead accounts for the inevitable emergence of new forms of exploitation of both children and adults over time.

11. This is particularly important given the small number of offences charged under the existing Section 71 offence in the Coroners and Justice Act 2009 (slavery, servitude and forced or compulsory labour), currently transposed into clause 1 of the Modern Slavery Bill. Evidence obtained through parliamentary questions strongly suggests that very few cases involving children and labour exploitation are progressed to prosecution. [5] In view of this, and the concerns raised in the paragraphs above, we urge the Bill Committee to consider significant amendments to the definitions and offences in Part 1 of the Bill to ensure they will enable prosecutions of those involved in trafficking and exploiting children.

Non -p rosecution of victims of trafficking

12. UNICEF UK is keen to see the non-prosecution principle enshrined in UK law to ensure that trafficked children are never punished, prosecuted or detained for any crime committed as a direct consequence of being trafficked. Non-prosecution principles can be found in the legislation of various other countries, including most notably in the Victims of Trafficking and Violence Protection Act of 2002 in the United States. [6]

13. The international principle that victims should not be punished for offences relating to their situation as a trafficked person is a well-established and accepted fundamental principle of anti-trafficking efforts globally. The UNICEF Guidelines on the Protection of Child Victims of Trafficking make it clear that States should not prosecute or impose sanctions on any child for offences related to their situation as a trafficked person – including, importantly, violations of migration law. [7] Article 8 of the EU Trafficking Directive is equally clear on this point. However, it has become evident through cases such as R v L & Others [8] that the practice of not prosecuting victims (and in this case, child victims) of trafficking for related offences is far from consistent, despite Crown Prosecution Service guidance published in 2011. [9]

14. In guidance to Member States in April 2013, the Organization for Security and Co-operation in Europe states:

"The punishment of victims of trafficking for crimes directly related to their trafficking is a violation of their fundamental dignity. It constitutes a serious denial of reality and of justice. Such punishment blames victims for the crimes of their traffickers, for crimes that, but for their status as trafficked persons, they would not have perpetrated." [10]

15. The introduction of a statutory defence in clause 39 of the Bill for trafficking and slavery victims who have been compelled to commit an offence is a welcome inclusion in the Bill; however, consent and compulsion (clause 39 (1)) in relation to eligible offences are not relevant considerations for children, and should not be introduced in this Bill. In addition, the extent and range of exceptions to the statutory defence (clause 39 (7) and Schedule 3) go far beyond those envisaged by the Draft Modern Slavery Bill Committee, and include offences that victims are commonly known to commit as a direct consequence of being trafficked or in the course of an escape (such as offences under the Immigration Act 1971, the Theft Act 1968, and criminal damage).

16. Moreover, we are concerned that such a defence is inappropriate to apply to children given their inherent vulnerability and particular need for special protection – it falls short of the more robust protection trafficked children would benefit from under a statutory non-prosecution principle. This has been outlined by both the Organization for Security and Co-operation in Europe and the UN Committee on the Rights of the Child. In June this year, the UN Committee recommended that the UK Government:

"…establish mechanisms and procedures to protect the rights of child victims of offences…including by establishing a clear obligation of non-prosecution in the criminal justice system and ensuring that [children] are treated as victims rather than criminals by law enforcement and judicial authorities." [11]

17. UNICEF UK would like to see a non-prosecution clause on the face of the Bill to enshrine the principle that child victims of trafficking and modern slavery should not face prosecution for any crimes they have committed as a result of their trafficking situation. This should be a prohibition rather than a defence. Every effort must be made to take a child rights based approach and create a clear and unambiguous law that prevents the unnecessary re-traumatisation of children.

Independent guardians for trafficked children

18. Separated migrant children, including trafficked children, are some of the most vulnerable in the UK. Many arrive in the UK seeking protection from violence, abuse, persecution or conflict, requesting asylum or humanitarian assistance. Some have been trafficked. These children are alone in an unfamiliar country, with no support from a parent or carer to help then, vulnerable to exploitation and abuse, and facing an uncertain future as decisions are made about their lives by unknown and complex authorities. UNICEF UK believes that all these children need an independent guardian to protect their rights, advocate for their best interests, and give them the help they need to grow up happy, healthy and secure. [12] In order for guardians to be able to provide this support to children, they need to be an independent but integral part of the child protection system, with accompanying statutory powers provided for in legislation. In June, the UN Committee on the Rights of the Child urged the UK Government to "prioritise the appointment of a competent and statutory guardian…". [13]

19. UNICEF UK welcomes the inclusion of clause 41 in the Modern Slavery Bill, to provide for an enabling power for the Secretary of State to appoint child trafficking advocates on a statutory basis (following the current trial and subsequent evaluation). However, we are concerned that the proposed role of the child trafficking advocate does not yet reflect international human rights standards and the practice we know works in other countries.

20. The Minister for Organised Crime recognised the particular needs of children stating;

Child victims of trafficking are a particularly vulnerable group in need of individually tailored support. Specialist advocates will help give these children a voice and ensure they receive the protection they need and deserve.

21. The EU Fundamental Rights Agency has recently set out the essential elements of a guardian’s role that need to be enshrined in national legislation. These include recruitment and appointment procedures; the duties, rights and responsibilities of guardians; professional requirements; monitoring and oversight procedures; the right of children to express their views; and the duty of public authorities to ensure they take children’s views into account and give them due weight. [14]

22. UNICEF UK strongly urges that internationally accepted principles of independent guardians are enshrined on the face of the Bill [15] :

· That the purpose of a child trafficking advocate is to promote and protect the best interests of the child as well as to safeguard and promote their welfare

· The advocate must be completely independent from public authorities, not just from any person responsible for making decisions about the child (clause 41 (2))

· Building on the potential duty for public authorities to co-operate with the advocate (clause 41 (4) (d)), the advocate must have adequate legal powers to ensure the legal authority and right to participate across different settings (such as criminal justice, immigration, housing and children’s services), and to instruct a solicitor on behalf of a child. This is particularly important in the case of trafficked children, who may have been coached to make decisions clearly in conflict with their own welfare and best interests.

23. International experience of guardianship systems, including in Belgium, Germany, the Netherlands and Sweden broadly shows that it is a professional service initiated through national legislation that establishes the independence, authority, support and expertise guardians need to navigate complex systems and processes in the best interests of children; and enables the continuity of care and high quality support that is needed for guardians to build a relationship of trust with a child. Best practice in the Netherlands has shown the huge impact that effective guardianship provision can have on the safety, well-being and futures of trafficked children.

Concluding remarks

24. UNICEF UK welcomes the Government’s commitment to ending these abhorrent crimes, and the leadership shown by the Home Office in ensuring human trafficking is prevented and punished in the England and Wales. We continue to believe the Modern Slavery Bill can be a worldwide example of how to integrate prevention, protection and prosecution for the better protection of children. However, the Bill needs strengthening to ensure that protection of children is in line with international standards and obligations. We are concerned that the best standard of care to protect them from further confusion, distress and trauma. UNICEF UK recommendations are in line with the EU Directive on Trafficking, the UN Convention on the Rights of the Child, and the UNICEF Guidelines on the Protection of Child Victims of Trafficking. We call on Parliamentarians and Government to act to strengthen the Bill to safeguard children in danger.

About UNICEF UK

UNICEF, the United Nations Children’s Fund, works in more than 190 countries to help every child realise their full potential. UNICEF is guided by the UN Convention on the Rights of the Child and strives to establish children’s rights as enduring ethical principles and international standards of behaviour towards children.

UNICEF UK is a member of the Anti-Trafficking Monitoring Group and the Refugee Children’s Consortium.

July 2014


[1] International Labour Organization (2012), ILO estimate of forced labour

[2] UK Human Trafficking Centre (2013), A Strategic Assessment on the Nature and Scale of Human Trafficking in 2012 – 549 children were potential victims of child trafficking in the UK in 2012

[3] UN Committee on the Rights of the Child (2014), Concluding Observations (OPSC): United Kingdom of Great Britain and Northern Ireland, paragraph 31

[4] United Nations (2000), UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (UN Palermo Protocol), Article 3; EU Directive on preventing and combating trafficking in human beings, 2011

[5] House of Lords, 22 July 2014, WA185 [HL909] – of 53 offences charged under Section 71 of the Coroners and Justice Act 2009 since 2011 (slavery, servitude and forced or compulsory labour), none were flagged with child abuse.

[6] Section 112: "Penalties for the crime of unlawful conduct with respect to documents in furtherance of trafficking, peonage, slavery, involuntary servitude, or forced labour do "not apply to the conduct of a person who is or has been a victim of a severe form of trafficking in persons, […] if that conduct is caused by, or incident to, that trafficking."

[7] See also Office of the High Commissioner for Human Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking, Principle 7, Guideline 2

[8] R v L & Others [2013] EWCA Crim 991; see also Refugee Council and The Children’s Society (2013), Still at Risk: A review of support for trafficked children

[9] Crown Prosecution Service (2011), http://www.cps.gov.uk/publications/docs/policy_for_prosecuting_cases_of_human_trafficking.pdf

[10] OSCE (2013), Policy and legislative recommendations towards the effective implementation of the non-punishment provision with regard to victims of trafficking, paragraph 4; see also paragraph 42 specifically on children

[11] UN Committee on the Rights of the Child (2014), Concluding Observations on the UK – Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, paragraph 39 (a)

[12] UN Committee on the Rights of the Child (2005), General Comment 6:

[13] UN Committee on the Rights of the Child (2014), Concluding observations (OPSC): United Kingdom of Great Britain and Northern Ireland, paragraph 39c

[14] EU Fundamental Rights Agency (2014), Guardianship for children deprived of parental care: A handbook to reinforce guardianship systems to cater for the specific needs of child victims of trafficking, section 2.1

[15] UNICEF (2006), Guidelines on the protection of the rights of trafficked children

Prepared 2nd September 2014